No. 18-1795

UNITED STATES OF AMERICA,

Appellee,

v.

DERRICK A. COFFIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Lynch, and Kayatta, Circuit Judges.

Hunter J. Tzovarras for appellant. Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

December 20, 2019 LYNCH, Circuit Judge. Derrick Coffin pled guilty to one count of possession of child pornography and one count of accessing child pornography with intent to view, both in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court sentenced Coffin to the statutory maximum sentence of 240 months' imprisonment on each count, to be served concurrently.

On appeal, Coffin challenges his sentence on procedural and substantive grounds, focusing on the enhancements given for a pattern of activity involving the sexual abuse of minors and for obstruction of justice, and the denial of an acceptance of responsibility reduction. We find no error.

He also argues his Criminal History Category (CHC) was miscalculated. We do not resolve that argument and request that the Sentencing Commission address the lack of clarity as to how criminal history points should be allocated when multiple prior sentences imposed on the same day are for the same length of time, and only one of those sentences constitutes a "crime of violence." We do not resolve the CHC issue because the district court explained why even if it had erred as to the CHC calculation, it would upwardly depart to impose the same category. And an upward departure was plainly reasonable.

I.

As this sentencing appeal follows Coffin's guilty plea, "we draw the facts from the plea agreement, the presentence

- 2 - investigation report (PSR), and the sentencing hearing transcript." United States v. Montalvo-Febus, 930 F.3d 30, 32 (1st Cir. 2019). A. Facts

In March 2016, Coffin was on probation from a Maine sexual assault conviction in 2006. Coffin's probation conditions for his 2006 conviction for gross sexual assault made his person, residence, vehicles, and electronic equipment subject to random searches and prohibited him from possessing child pornography images. On March 18, 2016, law enforcement officers conducted a search of Coffin's residence after he appeared to be violating probation conditions. He had been observed watching a video on his cell phone that appeared to depict the sexual abuse of an infant. Law enforcement officers seized a laptop computer, a cell phone, and a digital memory card from his home.

A preliminary forensic examination of the laptop revealed 556 child pornography image files, created on or about March 17, 2016, depicting the sexual abuse of prepubescent children by adult males. These images were stored under the computer's "derrick" user account. A secondary review revealed 759 more images of child pornography in the laptop's unallocated space.

On the cell phone, officers discovered a message sent by Coffin on January 11, 2016, using an application called "Kik Messenger" (the "Kik message"). Coffin does not contest the

- 3 - district court's factual finding that he wrote the Kik message. The Kik message described how